美國 不動産去來契約과 判例의 動向

• 영문명: A real estate transaction of America and tendency of the judicial precedent
• 발행기관: 대한부동산학회
• 저자명: 李昌相(Lee, Chang-Sang)
• 간행물 정보: 『대한부동산학회지』제23호, 65~96쪽, 전체 32쪽
• 주제분류: 사회과학 > 지역개발
• 파일형태: PDF
• 발행일자: 2005.06.30

영문 초록

Real estate is said that a land and a fixture are representative case. However Anglo-American law s real estate law has been formed on feudalism of the Middle Ages so, it is different from Korean real estate in Continental law system. Therefore, a house in the fixture of Anglo-American law is coincident subject in the real-estate that is subordinate right so, it isn t a independent real estate but Korea is. However, Korea allows that leasing right, usufructuary right, some utilization rights can be deal with a real estate. Therefor, market forces keep a right and transference on the real estate, involving it s kind of real estate and some utilization rights, are organized the sales contract. But, all states of America that is Anglo-American country that is different from Korean law system inherit The Common Law of England, so status of fraud that is established in the statue law or case law that is established English in 1677 changed and then has applied to now. Therefor, the transaction contract of real estate is forced in writing, contract effect by shortage in writing was denied. Therefor, in this manuscript describes that a history and meaning applied writing contract system , well-founded and unfounded. But, no one suggests different opinions that sales contract on the simple ownership, settlement of mortage, creation of real-estate trust are subject to writing contract system, there are several explanations that what is subject of writing contract system about some different contract in the pattern of real-estate dealing contract. Therefor, we examine several case, search extend of the subject rationally, are based on some precedent that the side of real-estate and some kind of contract s forms. In addition, there are lots of precedents that unforced and easy writing contract system. Therefor, there are a little change, the law established about 300 years ago doesn t work in today because of the market economy principle that go with the flow. So, in some part of the law appear that it should be amended writing contract system and made legal principles. And, one of important requests that should amend writing contract system is that some precedent ease requirements of the writing and have been develop legal principles of invalidity recovering by part performance. Finally, conclusion of this manuscript is rather forces unconditioned writing contract system than define some requisite, types and objects of writing contract system for keep pace with the times , makes a system that ease writing contract system through some trustable evidence and some contracting parties declaration of intention , indicates that we shouldn t leave alone,but amend the system that contracting parties who have no legal knowledge suffer damage because of writing lack in actuality. Writing this manuscript, in Korea , real-estate market is slumped, the news flash that someone intend to buy seniority housing and building follow one after another in addition to a speculator in real estate illegal funds incoming abroad, especially America. So, we all must recognize that it s difficult to performance ,if real-estate funds come in America illegally and when real-estate contract is transacted in Korean legal concept.

목차

I. 序 言

II. 不動産去來時 書面契約制와 詐欺防止法

III. 書面契約制에 대한 判例의 動向

IV. 書面으로서의 有效要件의 判例의 動向

V. 書面契約制의 修正法理

VI. 結 語

키워드

Escrow Estoppel Remainder Statute of Frauds Lien Water right